Name : Aston Martin

Student number : 67150217

Module : Law of Evidence

Module code : LEV3701

Assignment :1

Assignment code : 647366

STUDENT ACADEMIC INTEGRITY DECLARATION FORM

Aston Martin
I,____________________________, 67150217
with student number: ____________________ understand
that the University of South Africa regards breaches of academic integrity and plagiarism as grave
and serious.
By signing this form and by submitting this material online I confirm and declare that:
1. I have read and understood the Unisa Academic Integrity and Plagiarism Policy.
2. I accept the penalties that may be imposed should I engage in practice or practices that breach
this policy
3. This assignment, or any part of it, has not been previously submitted by me or any other person
for assessment on this or any other course of study.
4. This material, which I now submit for assessment, is entirely my own work and has not been
taken from the work of others save and to the extent that such work has been cited and
acknowledged within the text of my work.
5. I have identified and included the source of all facts, ideas, opinions, viewpoints of others in
the assignment references. Direct quotations, paraphrasing, discussion of ideas from my Study
Guide and case law are acknowledged and the sources cited are identified in the assignment
references.

Cape Town
Signed at ___________________________ 01 June
on the ________________ 2021

Signature: __________________________
 1. During a bail application, the accused has the privilege to given evidence without incriminating
themselves; meaning that in the circumstances of testifying where they are asked questions that
might lead to them incriminating themselves, they are allowed to decline to answer such
questions.1

In the case of S v Dlamini 1999 (2) SACR 51 (CC) (hereinafter referred to as ‘the Dlamini case’),
which related to bail, the constitutionality of section 60(11B)(c) of the Criminal Procedure Act 55
of 1997 (hereinafter referred to as ‘the CPA’) was to discussed. This section provided that the
recordings of bail proceedings will form a part of the trial.2 Therefore if the accused chooses to
testify during the bail proceedings, they must be informed but the court that anything said during
the bail proceeding may be used against them in the trial; thus making anything said within the
bail proceeding admissible in any proceedings thereafter.3

The Constitutional Court found that this section was aligned with the common law which states
that when an accused gives evidence during a bail application that is admissible, it is admissible
against the accused at a successive trial.4 Furthermore, the common law allows that an accused
can be cross-examined at trial regarding any statements made that may seem inconsistent; which
extends to include statements made during their bail proceedings.5

The abovementioned provision, that being section 60(11B), argues then that the accused is forced
to give testimony that may incriminate themself if they so desire to be released on bail.6

The Constitutional Court though held that section 60(14) of the CPA allows the prosecution to
refuse to provide evidence. Therefore, the evidence an accused gives during their bail application
may not be admissible against him at a trial.

2. The common law states that all communication that happens between a legal advisor and client
are protected from being disclosed on condition that the following requirements are met:

i. The legal advisor must be acting in a professional capacity

1
Schwikkard PJ and van der Merwe SE Principles of Evidence 4th edition (2016) Juta Cape Town 149.
2
Schwikkard PJ and van der Merwe SE Principles of Evidence 4th edition (2016) Juta Cape Town 150.
3
Schwikkard PJ and van der Merwe SE Principles of Evidence 4th edition (2016) Juta Cape Town 150.
4
Schwikkard PJ and van der Merwe SE Principles of Evidence 4th edition (2016) Juta Cape Town 150.
5
Schwikkard PJ and van der Merwe SE Principles of Evidence 4th edition (2016) Juta Cape Town 150.
6
Of the CPA.
 ii. All communication between the legal advisor and the client must be made in confidence

iii. The communication made in confidence must have relevance to receiving legal advice

iv. The client must claim the privilege (although the legal advisor will usually claim this
privilege on the part of their client)7

This privilege allows the client to decline to answer any question that may lead to them disclosing
any information that they shared with their legal advisor as well as prevent their legal advisor
from disclosing such information.8 This common law privilege is supported by section 201 of the
CPA.9

Applying the abovementioned legal rules to the given facts, Mr Shakes’ legal advisor was acting
in a legal capacity when he brought forth the objection to the admissibility of document that had
been taken at his office saying that they constituted privileged information. This implies that the
documents contained information that had been made transferred was made in confidence with
the intent of obtaining legal advice. This satisfies all the requirements set out by the common law.

The documents are thus considered privileged information and is not admissible in the trial.

3. The definition of hearsay evidence is provided for by section 3(4) of the Law of Evidence
Amendment Act 45 of 1988 (hereinafter referred to as ‘the Law of Evidence Amendment Act’) and
defined as “evidence … the probative value of which depends upon the credibility of any person
giving such evidence” and hearsay evidence can be in the form of oral or written.10
Section 3(1)(c) however is as Schwikkard describes a “radical departure from common law” due
to it providing the judicial officer power to admit hearsay evidence if it is deemed to be in the best
interest of justice.11 This section provides exceptions that allow hearsay evidence to be admissible
and also lists the factors that should be considered when determining the abovementioned and
are as follows: “…
i. The nature of proceedings;

7
Schwikkard PJ and van der Merwe SE Principles of Evidence 4th edition (2016) Juta Cape Town 160 – 162 / SG 122
8
University of South Africa Law of Evidence: Only Study Guide for LEV3701 (2018) University of South Africa
Pretoria 121.
9
University of South Africa Law of Evidence: Only Study Guide for LEV3701 (2018) University of South Africa
Pretoria 121.
10
University of South Africa Law of Evidence: Only Study Guide for LEV3701 (2018) University of South Africa
Pretoria 80.
11
Schwikkard PJ and van der Merwe SE Principles of Evidence 4th edition (2016) Juta Cape Town 296.
 In accordance with Metedad v National Employers’ General Insurance Co Ltd, based on
the concept of presumption of innocence, courts are more likely to admit hearsay in civil
cases than they would for criminal cases.12
ii. The nature of the evidence;
In the case of Hewan v Kourie, the hearsay evidence needs to be reliable when
determining the nature of the hearsay.13
iii. The purpose for which evidence is tendered;
In terms of the judgements of Hlongwane v Rector, St Francis College as well as the
Metedad case, evidence that relates to or supports one of the key issues being
determined will more likely be admitted than evidence that is being used to
create doubt.14
iv. The probative value of evidence;
When determining the probative value, the evidence is measured up against the prejudice
or harm that might come to the one providing the evidence.15
v. The reason why evidence is not given by person upon whose credibility the probative
value depends;
This is based on necessity and whether it could arise out of circumstances which include
“a witness’ absence from the country”. The case of Van Zyl and Another v Jonathan Ball
Publishers (Pty) Ltd and Others, the court held that the struggles the respondent may face
should be considered.16
vi. Any prejudice to a party which the admission of such evidence might entail; and
In accordance with the judgement held in S v Ndhlovu, the courts should hesitate in
allowing the admittance of hearsay if it may result in the conviction of the accused.17
vii. Any other factor which should in the opinion of the court be taken into account, is of the
opinion that such evidence should be admitted in the interest of justice.”18

12
Schwikkard PJ and van der Merwe SE Principles of Evidence 4th edition (2016) Juta Cape Town 296.
13
Schwikkard PJ and van der Merwe SE Principles of Evidence 4th edition (2016) Juta Cape Town 298.
14
Schwikkard PJ and van der Merwe SE Principles of Evidence 4th edition (2016) Juta Cape Town 298-299.
15
Schwikkard PJ and van der Merwe SE Principles of Evidence 4th edition (2016) Juta Cape Town 299.
16
Schwikkard PJ and van der Merwe SE Principles of Evidence 4th edition (2016) Juta Cape Town 299-300.
17
Schwikkard PJ and van der Merwe SE Principles of Evidence 4th edition (2016) Juta Cape Town 300-301.
18
Schwikkard PJ and van der Merwe SE Principles of Evidence 4th edition (2016) Juta Cape Town 296.
In light of the abovementioned factors, the fax should be admitted as hearsay evidence. It would
be acting in the best interest of justice.
Bibliography
Books:
University of South Africa Law of Evidence: Only Study Guide for LEV3701 (2018) University of South
Africa Pretoria

Schwikkard PJ and van der Merwe SE Principles of Evidence 4th edition (2016) Juta Cape Town

Legislation:
Criminal Procedure Act 55 of 1997.